Appeals court rules state's mass mailing of absentee ballot applications was legal

Posted at 5:18 AM, Sep 17, 2020
and last updated 2020-09-17 05:18:33-04

Secretary of State Jocelyn Benson's mass mailing of unsolicited absentee ballot applications to millions of 2020 voters was deemed legal by Michigan's appeals court, which ruled Wednesday she had “inherent” authority to act under a 2018 constitutional amendment expanding voting rights.

The court upheld a lower judge's ruling in a 2-1 decision.

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“Defendant’s conduct did not interfere with Michigan qualified registered voters’ rights. Ultimately, it is up to each voter to decide whether to vote in person or apply for an absentee ballot,” Judges James Redford and Jonathan Tukel wrote.

Benson, a Democrat, began sending the applications in May to all voters in the battleground state who were not already on permanent absentee ballot lists for the August primary and November general elections, which Benson said was a way to encourage safe voting during the coronavirus pandemic.

Lawsuits were filed by Yvonne Black and Nevin Cooper-Keel, Republican candidates for the state House who later lost in the primary, and Robert Davis, an activist and serial litigant.

In a dissent, Judge Patrick Peter said a law explicitly only gives local clerks the power to distribute absentee ballot applications, not the secretary of state.

When Benson announced the mass mailing, she was criticized by President Donald Trump, who wrongly stated that she was sending absentee ballots, not applications.

A record 2.5 million votes were cast in the August primary, including a record 1.6 million absentee ballots that were submitted by mail, at a drop box or in a clerk’s office. Already, about 2.3 million absentee ballots have been requested for the fall election, which Benson said puts Michigan on track to receive more than 3 million that are completed.

At a virus-related news conference that included Benson and voting advocates on Wednesday, Democratic Gov. Gretchen Whitmer thanked the state Senate for passing legislation that would let certain clerks start processing a surge of absentee ballots the day before the election. She urged the House to follow suit.

Benson laid out options to vote, including requesting and returning an absentee ballot by mail, voting in person before Election Day or going to the polls on Nov. 3. She again pressed the Republican-led Legislature to change the law so ballots received after Election Day are counted. The bill appears unlikely to go anywhere despite concerns about postal delays.

“We're entering the final stretch of what may be one of the most contentious, highly polarized election cycles that any of us have ever seen. We can and we will succeed to make sure our voices, the voices of all of our citizens, are heard and that every vote is counted,” Benson said.